Audit, Compliance and Risk Blog

Corporate directors and chief executive officers (CEOs) benefit from variety of legal rights, set forth in state corporation codes, company articles of incorporation and bylaws, and in their individual employment contracts. In addition, they may be able to access additional “equitable rights” to fair dealing, based on common law principals. But as a dethroned CEO just learned from the Delaware Supreme Court, these equitable rights can be limited by the equitable rights of other parties.

Although the federal Securities Acts do not expressly outlaw stock trading that exploits preferential access to “insider” information, the Securities and Exchange Commission (SEC) and courts have applied general language in those Acts to cover these situations. A very recent decision by the federal Court of Appeals for the Second Circuit marks the latest such expansion, in a case holding the “tippee” of insider information liable for profits he helped third parties create by trading on that information (SEC v. Contorinis).

Prosecutors rely on informants from time to time to identify wrongdoing and “make their cases.” But corporate fraud whistleblowers can face bleak futures: at best they may be ostracized from future promotions, at worst they may be terminated with no favorable recommendation. Section 806 of the Sarbanes-Oxley Act of 2002 (SOA) adds important protections for whistleblowers

The SEC voted (3-2), on September 18, 2013, to propose pay ratio disclosure rules as required by Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act. It has issued for public comment until December 2, 2013, its proposed rule, Pay Ratio Disclosure, requiring companies to disclose ratio of the chief executive officer’s (CEO’s) compensation to the median compensation of their employees. According to the SEC staff, registrants are given flexibility in calculating the median employee and total compensation for disclosure purposes based on their size, structure, and how they compensate their employees. Stakeholders who would like to have their views considered should act quickly to meet the December 2, 2013, deadline.